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1. Introduction
Language as a socially shared conventional code can be studied not only with reference to its formal properties but also with regard to its relationship to the lives and thoughts and cultures
of people who speak it. This is because, as Gregerson 1977 asserts, language expresses value and is itself a value. Thus the organization of a society, its religious beliefs, its
economy, and its judicial system are reflected in words.
Every language is thus context-bound, an argument shared by many sociologists and pragmatists who have tended to relate the study of linguistics with some social notions like
language and gender, languages and race, language and politics, and language and advertisements, to mention but a few. However, such studies need to be put within particular
cultural environments. For example, law practice, according to Gibbons 1994, is inconceivable without language. Language is therefore medium, process and product in the
various arena of the law where legal texts, spoken and written, are generated in the service of regulating social behavior Gibbons, 1994. In literate cultures, once norms and proceedings
are recorded, standardized and institutionalized, a special legal language develops, representing a predictable process and pattern of functional representation. Verschuen 1974
gives an example of the trial that consists of constellation of different types of utterances the judge giving instructions, the jury summation and the dialogic clusters witness
interrogations all inter textually linked as an interrogation sequences, the jury summation summing up what has preceded, contextually participant roles are well defined the accused,
the judge, the prosecutor, defense attorneys, jurors, witnesses and expert witnesses. These institutional roles are defined in terms of turns or turn types to be used by each of them, e.g.
judges give instructions, attorneys ask questions and object to each other’s questions, witnesses answer questions and jurors mostly listen.
However, in preliterate societies or oral communities, as Gibbons 1994 observes, there is no specific legal register of jargon; instead, the resources of everyday language are used to
express this complex concept. There is also relative lack of codification of the law, which implies that few concepts have undergone the process of reification into specific legal
terminology, which is typical of literate societies.
The absence of jargon and codification, nonetheless, does not mean simplicity nor does it suggest triviality in handling legal matters in the preliterate societies. In such societies, what
happens in settling disputes is through litigation. Litigation, according to Gumperz 1986, is a case or dispute that is brought to a traditional court. It is thus topic-focused mutual speech
behavior the distinctive attributes of which pertain to the content and role structure of talking. Such disputes usually arise when an identified party is charged with an offence and the
accused counters the charges. In this traditional way of settling disputes language, notes Myers 1990:498, language is used as a powerful tool where conflicts and hostilities are
transformed into harmony. It is through the use of language that communication is made possible to solve differences among friends through bargaining mediation and arbitration.
However, in this litigation process, unlike in formal western courts, there are no distinctive paraphernalia, no judges’ robes, participants do not dress up to go to court, no one has to
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constantly play a host role, no law books, no gravel, no judges, no bench and no witness stand Gumperz, 1986.
The aspect of litigation has not been widely studied in the linguistic arena. Among the few studies are Frake 1990 on Akan people, Obeng 1997 on Yakan people and Goldman
1986 on Huli people. For the Yakan, Frake 1990 made an ethnographic study of the people’s traditional ways of settling dispute. Among the wrongs that warranted litigations
were desecrating the world’s supernatural beings, wrongs against ancestors, theft, murder, manslaughter, fights and property disputes. During the process, the participants tended to use
elaborate linguistic expressions in talking about different types of offences along with a variety of semantic dimensions dealing with the nature and the consequences of the acts as
well as social relationship between the offender and the complainant. He also noted that the litigation process involved stating the offences involved, laying the charges by the
complainant who must identify the offender and assume responsibility for the identification.
Another study is by Obeng 1997 of the Akan people in Ghana. He focused on the structure and procedural issues in handling litigation. He noted the following participants and steps: i
Linguistic choices
which are determined by the speaker’s intent, the institutional nature of the
discourse, the ages of the interactants, their gender and their socio-economic status, ii
the akyame
, the people who act in various capacities in the traditional court. These have institutional power which may be expressed through language; iii
the court setting
, which has the jurisdiction to hear cases and fine litigants; iv
Requests to speak or clarify
in which a litigant requests a speaking turn using such address forms as
agyanou
and
nana
i.e. ‘elders’ as well as differential expressions like
mo adoworoma
i.e. ‘by your Grace’ and
anidie mu
i.e. ‘respectfully’. These expressions show that the litigants are of lower status by virtue of the institutional nature of the discourse, v
admission of guilt
in which the speaker, on recognizing hisher lack of power, on the one hand, and the addresser’s power, on the other,
succumbs to humility and uses expressions
mepa mo kya
i.e ‘pleaseI beg you’ and
may mofomoso
i.e. ‘I am guilty’, and vi
Forgiving,
in which only the
akyames
are the sole custodians for granting forgiveness. Forgiveness is in the form of statements or commands.
Goldman’s 1986 study of Huli people of New Papua Guinea focused on the question formation, selection and sequencing in the traditional court settling of disputes. He found that
differentials in the nature and structure of speech, role relationships and gender-inflected patterns are in part responsible for a contrast in discourse strategy between Huli men and
women; for example, whereas the women provided more reason-based statements, the men seemed to leave the justification structure to the inference by the audience.
In Botwana, Moumakwa 2010 studied the Setswana
Kgotla
System: a mechanism for a traditional conflict resolution focusing on how the
Kgotla
was functioning the role it played in addressing conflicts arising from within and between its communities in modern Botswana.
He noted that the cases were mainly presided by
Kgosi
or
Kgosana
and the crimes included thefts, fights and other forms of public nuisance. The judgment varied from communal
service to reimbursement or corporal punishment public flogging, which is in the form of several cuts with a cane across the back.
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Schapera 1955 also studied the handling of civil and criminal wrongs according to Tswana laws and customs. In the case of a civil wrong, it was expected that the victim would first
look to the wrongdoer for satisfaction by direct negotiation. Should this fail, then the matter proceeds to the local court and, if necessary, thr
ough the hierarchy to the chief’s court. The matter is tried at the instance o
nly of the victim or the victim’s representative. He further noted that a Tswana chief was also provided with advice from his senior male relatives. They
would intercede with the chief in the event that a man felt aggrieved by some action or decision of the chief.
In South Africa, Monnig 1967 studied Pedi tribal law that emphasizes group relationships and rights rather than those of the individual. He observed that stress is placed on restoring
relationships as well as the reconciliation of groups. He recounts:
The court takes great pains to reconstruct the cause of any dispute, to show individuals who are not accused how their actions may have given rise to the complaint, and
frequently advises the accused that he may have a counter claim. The court always enquires whether the disputing parties have tried to come to a mutual settlement
beforehand, and frequently refers a case back to the families involved to attempt by private discussion to resolve their dispute M nnig, 1967:308.
He further observed that the majority of disputes are resolved through the mediation process within or between family groups. Thus, the Pedi have a highly evolved system of conflict
resolution, and parties are actively encouraged to resolve their differences without intervention from the chiefs or their delegates through the medium of family processes as
courts of first instance.
Again in South Africa, Kuckertz 1990 studied the institution of mat associations as one of the conflict resolution mechanisms prevalent among the Pondo people. The mat leader is the
first person whom a disputant approaches with his problem in cases involving two such groups, that the members of the two hospitality groups would meet and attempt to settle the
matter between themselves. Hammond-Tooke 1997 earlier on noted the unusual feature of this court in the use of ukuzidla, i.e. a self-imposed fine and is employed thus:
If a person realizes that he is in the wrong, or it is apparent to him that his fellow lineage members deem him so, he may impose a fine of a sheep, goat or even a beast on himself
to indicate his contrition and to wash away his offence. This ‘ukuzidla’ is sometimes also
resorted
to in the headman’s court, constituting an admission of guilt. It is known as ‘imali yoku zithandazelo’ money of begging for mercy and is an indication to the court
of the sincer ity of repentance. In a case where the guilty party imposes a fine on himself
that the members of the ‘inkundla’ regard as inadequate, they regard this as proof that
he is not really sorry, and may increase the fine; on the other hand, if he fines himself too heavily, they are likely to reduce it. Hammond-Tooke 1975:173
2. Theoretical Framework
